RENDERED: JUNE 17, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2017-CA-1665-MR

STEVEN D. ROARK APPELLANT 

v. 

APPEAL FROM KNOX CIRCUIT COURT

HONORABLE DAVID A. TAPP, SPECIAL JUDGE

ACTION NO. 15-CR-00112-003 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, 

JUDGES.

THOMPSON, K., JUDGE: On remand from the Kentucky Supreme Court, we 

consider Steven D. Roark’s arguments that the Knox Circuit Court erred in 

providing two erroneous jury instructions and failing to instruct the jury regarding 

a requested lesser included offense.

1

 

1 The Kentucky Supreme Court reversed our prior Opinion in which we held that the trial court 

abused its discretion in excluding a co-defendant’s plea hearing testimony where Roark 

subpoenaed his co-defendant, who failed to appear at the trial, and the co-defendant stated during 
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The trial court erred in permitting a duplicitous instruction as to 

Roark’s manufacturing of methamphetamine charge, resulting in a jury unanimity 

problem as to whether all the jurors convicted him for the same separate instance 

of manufacture or on different instances based on actual manufacture or possession 

of chemicals or equipment with intent to manufacture. The trial court also 

committed palpable error involving double jeopardy where Roark may have been 

convicted for possessing the same quantity of methamphetamine as he was 

convicted of manufacturing. Therefore, we reverse and remand for a new trial on 

those charges. However, the trial court did not err in declining to instruct the jury 

on facilitation to manufacture methamphetamine as this was not a lesser included 

offense to manufacture of methamphetamine.

On February 25, 2015, Roark and four other adults, including Tonia 

Couch, were in a trailer which belonged to Couch, when Trooper Taylor Mills and 

Trooper Jason Partin arrived to do a welfare check at the residence based upon a 

report that there was a possible methamphetamine lab present along with a

juvenile.2 Couch let the police in, told them no one else was present besides her 

his plea hearing that he had manufactured the methamphetamine alone and reinstated Roark’s 

conviction and sentence. See Commonwealth v. Roark, 641 S.W.3d 94 (Ky. 2021) (reversing 

Roark v. Commonwealth, No. 2017-CA-001665-MR, 2020 WL 594129 (Ky.App. Feb. 7, 2020)

(unpublished)). The Court then granted a petition for rehearing allowing consideration of these 

remaining issues.

2

It is well established that the active production of methamphetamine poses a danger of 

explosion and other potential harm to persons present nearby. See Pate v. Commonwealth, 243 
-3-

child and friend who were with her in the living room and then consented to a 

search after the police heard a sound in the back of the trailer. 

The police found Roark, Couch’s husband, and another man in the 

bedroom lying on a mattress and feigning sleep. On the floor next to the mattress, 

the police discovered a small plastic baggie containing white powder stored in a 

cellophane wrapper. 

In the attached bathroom, the police found a funnel with a white, 

powdery substance inside, a used coffee filter, and a large bag of salt. Inside the 

toilet they found a plastic baggie with clear liquid and a spoon. The police also 

found needles in the bathroom cabinet. Inside the bathroom floor vent police 

found a modified Mountain Dew bottle with green tubing attached, another plastic 

bottle which contained a clear liquid substance, and a plastic bag containing coffee 

filters.

The police arrested all the adults in the trailer. As no one admitted 

that the drugs and paraphernalia were theirs, five people, including Roark, were 

indicted for: (1) manufacturing methamphetamine, first offense; (2) possession of 

a controlled substance, first degree; (3) controlled substance endangerment to a 

S.W.3d 327, 331 (Ky. 2007) as modified on denial of reh’g (Nov. 1, 2007), as corrected (Jan. 23, 

2008).
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child, fourth degree;3(4) tampering with physical evidence; and (5) possession of 

drug paraphernalia.

Before Roark went to trial, Couch and another person pled guilty to 

reduced charges in exchange for truthful testimony against Roark and another 

defendant. A third defendant, Couch’s husband, entered an open plea of guilty to 

all the indicted charges against his counsel’s advice and stated that he acted alone 

in manufacturing the methamphetamine. 

On May 15, 2017, Roark was jointly tried with the remaining

defendant. During this trial the jury heard testimony for the Commonwealth from 

Trooper Mills, Trooper Partin, Jamie Hibbard of the Kentucky State Police (KSP) 

Lab, Detective Jason Browning of the KSP Drug Enforcement Special 

Investigations Unit, and Couch. The troopers testified about what they found when 

they searched as detailed above. Hibbard testified as to the analysis that the baggie 

of white powder in the bedroom was methamphetamine and the clear liquid in the 

plastic bottle from the vent was methamphetamine. Detective Browning testified 

about how people manufacturing methamphetamine acted, including that they 

burned their trash to conceal evidence of the manufacture of methamphetamine. 

He also testified as to the purpose of the items found in making methamphetamine 

3 Couch had custody of multiple children, but only one child was present when the police 

searched and discovered the contraband.
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and that the plastic bottles in the bathroom vent were a one-step methamphetamine 

lab and a hydrogen chloride (HCl) generator. 

Although there was a lot of testimony from law enforcement about the 

manufacture of methamphetamine, the presence of drugs and paraphernalia, and 

the hidden location of the lab, this testimony did not tie Roark to these things 

beyond his mere presence in the trailer. Only Couch’s testimony connected Roark 

with the manufacture of methamphetamine. 

Couch testified that Roark lived in the trailer with her and her husband

and was in the process of moving out when they were arrested. Couch claimed 

Roark was staying in the master bedroom by the back door (which was where the 

drugs were found), while she chose to occupy a smaller bedroom to be closer to the 

bedroom where her children slept.

Couch testified that when the police knocked, Roark yelled from the 

back, “Don’t open the door,” but she disregarded his command, opened the door,

and granted the police consent to search. Couch testified that Roark burned the 

trash every day. She also testified that Roark called her in May or June of 2015 

and “apologized for bringing it into my house.”

At the close of the Commonwealth’s case, Roark moved for a directed 

verdict on the felony charges, which was denied except as to controlled substance 
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endangerment to a child, which was granted as there was no evidence that Roark 

knew the child was present.

Roark testified in his own defense. He testified that on the morning 

when the police searched, Couch’s friend drove him and his co-defendant to 

Couch’s trailer at about 8:30 or 9:00 a.m. as Couch wanted a ride to go pick up her 

other children. Roark explained that when they arrived via the back door they

went into the back bedroom; Couch was in the back bedroom and was putting on 

her make-up and fixing her hair. Later, Couch left the bedroom and closed the 

door behind her.

Roark testified he, Couch’s husband, and a third man sat down on the 

mattress on the floor in the bedroom and they were playing on their phones and 

listening to music. Roark admitted to using methamphetamine at that point.

Roark admitted he would have recognized methamphetamine 

manufacturing if he had seen it, but denied going into the bathroom, seeing the lab, 

and seeing any components of methamphetamine manufacturing except maybe salt 

sitting on a shelf. Roark denied having drugs on him or that the bag of 

methamphetamine belonged to him. Roark denied bringing any of the contraband 

items into the house and denied destroying or concealing anything.

Roark also denied living in the trailer. He claimed Couch moved in a 

couple of months after she separated from her husband, and he helped her move in 
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her furniture and get rid of items in the trailer left by the previous occupant. Roark

admitted he stayed overnight a couple of times when he was working on this. 

Roark stated he did not receive mail there; instead, he lived with his mother.

Roark denied calling and apologizing to Couch. He testified she put 

some money on his phone account when he was in jail. Later, he called Couch

because he heard she was sick. He testified that during this phone call Couch “was 

basically apologizing to me for me being locked up for this matter.”

Roark admitted he was a drug addict and used about 1/4 gram of 

methamphetamine a day, every day, or every other day when he could afford it. 

He testified he started using methamphetamine in 2013 or 2014, recognized a lot of 

the components for it, and had seen recipes for making it. He also admitted he was 

a convicted felon.

Even though Couch’s husband had already pled guilty to 

manufacturing the methamphetamine in the bathroom, the Commonwealth sought 

to convict Roark as a principal rather than an accomplice and did not request a 

complicity instruction. Roark objected to the manufacture of methamphetamine 

instruction as he believed the Commonwealth had to pick one method of 

manufacture or another, or else there would be a problem with jury unanimity. 

The trial court commented that Roark was objecting to there being an A or B in the 

instructions, but stated it believed that giving the unanimous instruction solved that 
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problem and determined the Commonwealth’s proposed instructions were 

appropriate. Roark later presented his own proposed jury instructions in which he 

requested that the manufacture of methamphetamine state that Roark “acting alone 

or in concert with others, knowingly had in [his] possession with the intent to 

manufacture methamphetamine two or more chemicals and/or two or more items 

of equipment for the manufacture of methamphetamine.”

Roark also requested an instruction for facilitation to manufacture

methamphetamine as a lesser included offense of manufacturing

methamphetamine. The trial court declined to give such an instruction because it 

determined that facilitation was not a lesser included offense. Roark did not 

request any other instructions for lesser included offenses, such as unlawful 

possession of a methamphetamine precursor.

After the jury was instructed, Roark was found guilty of 

manufacturing methamphetamine, possession of a controlled substance, tampering 

with physical evidence, and possession of drug paraphernalia. The jury 

recommended ten years of incarceration for the manufacturing offense, one year 

for possession, one year for tampering, and twelve months on the drug 

paraphernalia charge, to run concurrently for a total of ten-years’ imprisonment. 

These were the minimum sentences the jury could recommend on the felony 

charges.
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The trial court dismissed the possession of drug paraphernalia charge 

based on a defect in the paraphernalia instruction. The trial court sentenced Roark 

in accordance with these recommendations on the remaining charges to a total of 

ten years of incarceration.

We now consider Roark’s arguments regarding errors within his jury 

instructions. “Alleged errors regarding jury instructions are considered questions 

of law that we examine under a de novo standard of review.” Hamilton v. CSX 

Transp., Inc., 208 S.W.3d 272, 275 (Ky.App. 2006).

Roark first argues he received a non-unanimous and unreliable verdict 

as to the manufacturing of methamphetamine charge because the jury could have 

convicted him on manufacturing in two different ways but was not required to have 

unanimity on either of the two methods. The relevant jury instruction reads as 

follows:

INSTRUCTION NO. 2

COUNT 1

MANUFACTURING METHAMPHETAMINE

You will find the Defendant, Steve Roark, guilty of 

Manufacturing Methamphetamine under this Instruction 

if, and only if, you believe from the evidence beyond a 

reasonable doubt that in this county on or about February 

25, 2015 and before the finding of the Indictment herein;

A. He knowingly manufactured methamphetamine;

OR
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B. He knowingly had in his possession with the intent to 

manufacture methamphetamine two or more 

chemicals, or two or more of the items of equipment 

for its manufacture.

Roark explains that certain members of the jury might have convicted him based 

on his manufacture of the methamphetamine that was discovered in the bathroom

(the plastic bottles in the bathroom vent which were a one-step methamphetamine 

lab and an HCl generator), while other members of the jury might have convicted 

him based on his having the chemicals and equipment needed for future 

manufacture in the bathroom (such as the funnel, coffee filters, and bag of salt). 

Roark argues that the standard, general unanimity instruction the trial court gave 

the jury could not cure this error.

The Commonwealth argues that Roark could properly have been 

convicted under two alternative theories, explaining under the first theory Roark 

could be convicted based on “the fact that he was found in a trailer, with an active 

methamphetamine lab, and a bottle connected to the lab which contained 

methamphetamine” and under the second theory he could be convicted for 

“possessing two items of equipment or chemicals with intent to manufacture 

methamphetamine.” The Commonwealth relies almost exclusively on an 

unpublished opinion, Marshall v. Commonwealth, No. 2016-SC-000302-MR, 2017 

WL 3634482, at *5 (Ky. Aug. 24, 2017) (unpublished), for its assertion that it need 
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only establish that there was sufficient evidence to support Roark’s conviction 

under either basis provided by the jury instructions. 

“Section 7 of the Kentucky Constitution requires a unanimous 

verdict[.]” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). A unanimous 

verdict is also required by statute and rule. Kentucky Revised Statutes (KRS)

29A.280(3); Kentucky Rules of Criminal Procedure (RCr) 9.82(1). “A violation of 

this provision may occur in several ways; however it may be stated as a general 

principle that a violation occurs when a verdict is returned based upon jury 

instructions and verdict forms that provide no assurance that all of the jurors based 

their finding of guilt on the same event.” Elam v. Commonwealth, 500 S.W.3d 

818, 826 (Ky. 2016). 

In Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013), a mother 

was convicted of first-degree criminal abuse of her son, but this verdict was 

supported by evidence about two different fractures he received at two different 

times. The Court “[held] that such a scenario – a general jury verdict based on an 

instruction including two or more separate instances of a criminal offense, whether 

explicitly stated in the instruction or based on the proof – violates the requirement 

of a unanimous verdict.” Id. at 449. 

Similarly, in Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013)

(which was decided alongside Johnson), the Commonwealth presented evidence 
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that the defendant committed the crime of use of a minor under the age of 18 in a 

sexual performance through certain actions at a party and the separate action of 

having the minor model underwear sets. The Commonwealth argued the jury 

instructions, which did not require the jury to specify the acts of which it found the 

defendant guilty, were proper because 

the jury instruction simply allowed the jury to convict 

[the defendant] of one crime under two theories, and his 

right to a unanimous verdict was not violated because 

sufficient evidence existed for a reasonable juror to 

believe that [the defendant] committed the crime of use 

of a minor under the age of 18 in a sexual performance as 

to [the victim] under both factual theories.

Id. at 831. 

While the Court acknowledged that “[i]n the past, this Court has 

typically analyzed combination instructions like the one here as though they 

allowed the jury to find the defendant guilty under either of two theories[,]” and 

noted that “[t]he Commonwealth contends that this analysis applies here[,]” the 

Court rejected the Commonwealth’s reasoning. Id. at 830-31 (footnote omitted). 

The Court explained that “it is not enough that sufficient evidence existed to 

support a jury finding that [the defendant] committed both criminal acts” and 

determined jury instructions which did not distinguish the acts violated the 

defendant’s right to a unanimous verdict. Id. at 831.
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The Court in Johnson explained the difficulty in understanding this 

kind of error, (which has been “referred to as the ‘multiple acts’ error, or . . . the 

‘duplicitous instruction’ error[,]” as noted in King v. Commonwealth, 554 S.W.3d 

343, 352 (Ky. 2018)), as follows:

The biggest hurdle is in understanding that cases like this 

one do not present multiple theories of a crime, but 

instead multiple distinct crimes under a single count. 

Thus, unlike the case where two theories – such as two 

means or mental states – of a single crime are presented 

in an instruction, we have an instruction that includes 

multiple crimes but directs only one conviction. 

Recently, we have been allowing the latter type of 

conviction, though not always, saying that different 

crimes are simply different theories of a defendant’s 

single offense.

But that is like giving directions to a McDonald’s 

on the east side of town to half a group of travelers, and 

directions to one on the west side of town to the other 

half, despite a rule that requires all the travelers to go to 

the same restaurant. Both groups arrive at a

McDonald’s, but not all the travelers are in the same 

place.

The unanimity requirement mandates that jurors 

end up in the same place. When we give the kind of 

instruction in this case to juries, they are forced by its 

language to appear to end up in the same place in order 

to convict. But that appearance is illusory because we 

can never know whether the jurors are indeed in the same 

place. Such instructions make it possible that some of 

the jurors may vote for the first crime, and some may 

vote for the second, with all agreeing that the defendant 

committed a crime. In other words, all of the jurors end 

up convicting (i.e., arriving at a McDonald’s), but some 

of the jurors voted for one instance of the offense (i.e., 
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the east-side McDonald’s) and some voted for the other 

(i.e., the west-side McDonald’s). We have no certainty 

that twelve people found the defendant guilty of the same 

instance of the crime.

Johnson, 405 S.W.3d at 455. See King, 554 S.W.3d at 352 (explaining there is 

consensus among many states, which Kentucky had joined, that “juror unanimity 

means that jurors must agree upon the specific instance of criminal behavior 

committed by the defendant but they need not agree upon his means or method of 

committing the act or causing the prohibited result.”).

This problem of the duplicitous instruction error often arises regarding

sexual and similar type crimes where there are multiple criminal acts involving the 

same victim which occurred over a lengthy period of time. See, e.g., id. at 351-52; 

Gullett v. Commonwealth, 514 S.W.3d 518, 529-30 (Ky. 2017); Ruiz v.

Commonwealth, 471 S.W.3d 675, 679 (Ky. 2015); Martin v. Commonwealth, 456 

S.W.3d 1, 6-8 (Ky. 2015). However, as Johnson demonstrates, it is not limited to 

this kind of crime.

We are not convinced, based on the overwhelming published 

authority, that we should consider, let alone follow, the unpublished opinion of 

Marshall, 2017 WL 3634482, at *5, which forms the basis for the 

Commonwealth’s denial of there being any jury unanimity problem. Marshall

relied exclusively on Wells, 561 S.W.2d at 88, a Kentucky Supreme Court case 

from 1978, for the proposition that “a verdict cannot be successfully attacked upon 
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the ground that the jurors could have believed either of the two theories of the case 

where both interpretations are supported by the evidence and the proof of either 

beyond a reasonable doubt constitutes the same offence” in determining that 

because there was evidence of both actual manufacturing of methamphetamine and

possession of two or more pieces of equipment or chemicals with the intent to 

manufacture methamphetamine, the verdict was proper. Wells was consistent with 

our pre-Johnson/Kingrey jurisprudence which allowed unanimity from reaching 

separate McDonald’s restaurants.

Marshall is an outlier and fails to discuss Johnson, Kingrey, or any of 

the other substantive published case law on this issue, all of which distinguish

between different theories about how a single operative crime was committed as 

compared to allowing the jury to convict for one crime based on two or more 

instances of the same type of criminal activity which constituted separate crimes. 

Furthermore, Marshall does not appropriately qualify for consideration pursuant to 

Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) because there are myriad 

published opinions which adequately address the general issue being considered.

Additionally, while there are no published cases discussing whether 

the duplicitous instruction error can arise from providing jury instructions which 

contain two different statutory methods by which defendants may be convicted for

manufacturing methamphetamine, KRS 218A.1432(1)(a)-(b), two other 
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unpublished Kentucky Supreme Court cases follow the same general method of 

addressing the problem that a defendant does not receive a unanimous verdict if the 

evidence provides two bases for manufacturing: (1) completed methamphetamine 

manufacture; and (2) future production of manufacture.

4

 Therefore, Marshall is 

not even consistent with other unpublished methamphetamine manufacturing 

cases.

While the Commonwealth speaks of two theories for one crime, it in 

fact confirmed that there was evidence to support two different instances of 

manufacturing methamphetamine via each statutory option, KRS 218A.1432(1)(a) 

and (b). Because the jury did not necessarily agree on which instance of 

4

In Anderson v. Commonwealth, No. 2014-SC-000153-MR, 2015 WL 6560442, at *3 (Ky. Oct. 

29, 2015) (unpublished), the Court explained there was a duplicitous instruction error as “some 

jurors could have believed Appellant was guilty of manufacturing methamphetamine by making 

meth at Drury’s on June 30, while other jurors believed Appellant was guilty of manufacturing

methamphetamine only because he possessed at his home on July 1 two or more of the chemicals 

or items of equipment needed for making meth.” In Bauer v. Commonwealth, No. 2012-SC000241-MR, 2014 WL 4113110, at *4 (Ky. Aug. 21, 2014) (unpublished), the Court explained 

that while the appellant’s “possession of the pseudoephedrine and other items with intent to 

manufacture merged with the actual manufacture of methamphetamine using those items to 

create a single offense of manufacturing methamphetamine” there could still be a “separate, 

second instance of the offense when [the defendant] had chemicals and equipment for the 

manufacture of methamphetamine in her possession after she and her husband had successfully 

manufactured and used the methamphetamine on June 23-24.” The Court concluded that 

“[w]hen the indictment includes only one count, as it did here, then the Commonwealth should 

elect which instance of the offense to try, and the judge is required to limit the instruction to one 

of the offenses.” Id. at *5. These cases both relied on Johnson. We cite these cases not as 

authority, but to show that continuing conduct does not appear to serve as an exception which 

would prevent the duplicitous instruction error from applying to the two different methods by 

which manufacturing of methamphetamine may take place, and to provide contrast with 

Marshall.
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manufacturing methamphetamine it based its finding of guilt, its verdict cannot 

stand and Roark is entitled to a new trial on the charge of manufacturing 

methamphetamine.

To fix the problem of duplicitous instruction on remand, jury

instructions need to be “tailored to reflect the evidence and require a unanimous 

verdict regarding a specific factual scenario[.]” Martin, 456 S.W.3d at 8. “[T]he 

instructions and verdict forms must be couched in language that eliminates any 

ambiguity regarding the jury’s consensus.” Ruiz, 471 S.W.3d at 678. To do this, a

trial court has three options:

(1) the jury instruction can simply identify which of the 

particular criminal acts included in the evidence the jury 

is asked to consider; (2) the verdict form can identify the 

particular act upon which the jury determined guilt; or (3) 

a special instruction, as held by some courts, informing 

the jury that, in order to convict, all twelve jurors must 

agree that the defendant committed the same act.

King, 554 S.W.3d at 353. See Gullett, 514 S.W.3d at 529-30 (providing examples 

of how jury instructions could be rephrased with more specificity so to eliminate 

the duplicitous instruction error where there were two incidents of both sodomy 

and sexual abuse).

Roark’s second argument on appeal is that a palpable error exists 

since the jury may have convicted him of possessing the same methamphetamine 
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that he was convicted of manufacturing based on the following jury instruction that 

did not specify what methamphetamine he was supposed to have possessed: 

INSTRUCTION NO. 2

COUNT 2

FIRST-DEGREE POSSESSION OF A 

CONTROLLED SUBSTANCE

You will find the Defendant, Steve Roark, guilty of FirstDegree Possession of a Controlled Substance under this 

Instruction if, and only if, you believe from the evidence 

beyond a reasonable doubt all of the following:

A. That in this county on or about February 25, 2015 and 

before the finding of the Indictment herein, he had in 

his possession a quantity of Methamphetamine; 

AND

B. That he knew the substance so possessed by him was 

Methamphetamine, a Schedule II Narcotic Controlled 

Substance.

Roark points out that in the bathroom there was a glass vial of clear 

liquid with white residue that tested positive for methamphetamine, and in the 

bedroom there was a baggie of white powder, but the jury instruction did not 

clarify which methamphetamine he was to have possessed.

The Commonwealth argues there was no palpable error as:

It was unmistakable that the methamphetamine in the 

bathroom related to the manufacture and the baggie in the 

bedroom related to the possession. There was proof of 

separate acts upon which to base [Roark’s] convictions 
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for manufacturing methamphetamine and possession of 

methamphetamine.

The Commonwealth notes that if there is a double-jeopardy violation, the 

appropriate remedy would be for the Court to vacate or reverse the lesser included 

charge.

“[A]n appellant’s failure to present a double-jeopardy argument to the 

trial court should not result in allowing a conviction that violates double jeopardy

to stand.” Early v. Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015). Therefore, 

if we determine that a violation of double jeopardy occurred, this is a palpable 

error that requires reversal.

The case of Beaty v. Commonwealth, 125 S.W.3d 196, 213-14 (Ky. 

2003), abrogated on other grounds by Geary v. Commonwealth, 490 S.W.3d 354, 

358 (Ky. 2016), is instructive on this matter. In Beaty, the Court explained that an 

appellant could properly be convicted of both possessing methamphetamine and 

manufacturing methamphetamine “if the methamphetamine that he was convicted 

of possessing was not the same methamphetamine that he was convicted of 

manufacturing[,]” but the Court could not “discern from the jury’s verdict . . .

which quantity of methamphetamine Appellant was convicted of possessing.” Id. 

at 213. In Beaty, it was unclear whether the conviction of possession was based 

upon methamphetamine in a jar, which had been part of the manufacturing process, 

or based on methamphetamine residue found on a piece of burnt aluminum foil, as 
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the jury instructions did not require the jury to make a distinction between the two 

possible sources for the possession conviction in its verdict; thus, reversal was 

required. Id. at 213-14. The Court suggested appropriate additional language 

which could be added to the jury instructions to solve this issue. Id. at 213. See 

Johnson v. Commonwealth, 134 S.W.3d 563, 568-69 (Ky. 2004) (reversing as 

“seed jars” containing methamphetamine residue were part of the manufacturing 

process and could not form the basis of a possession conviction on top of the 

manufacturing conviction).

We note, additionally, because there were two quantities of 

methamphetamine at issue, that this jury instruction is also problematic because it 

is a duplicitous instruction. That type of error “violates a defendant’s right to a 

unanimous verdict and also touches on the right to due process, is a fundamental 

error that is jurisprudentially intolerable” and is thus “palpable[.]” Johnson, 405 

S.W.3d at 457. See Ruiz, 471 S.W.3d at 679 (relying on Johnson in its reversal for 

an unpreserved error); Martin, 456 S.W.3d at 8-10 (discussing the binding 

precedent from Johnson and Kingrey that such an error is palpable resulting in 

manifest injustice).

Even if we knew definitively that the jury convicted Roark of the 

manufacture of methamphetamine based on Roark’s having the chemicals to 

manufacture, we would have a unanimity problem as discussed in Roark’s first 
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argument on appeal as we would not know whether all of the jurors convicted him 

based on the powdered methamphetamine rather than the liquid methamphetamine. 

Therefore, reversal on Roark’s conviction for possession of methamphetamine is 

required, and he is entitled to a new trial on this charge.

Finally, Roark argues he was entitled to an instruction on facilitation 

to manufacturing methamphetamine as a lesser included offense to manufacturing 

methamphetamine. We address this issue as it may recur on retrial. However, we 

disagree with Roark that any error occurred in the trial court’s denying his request.

“An instruction on a lesser included offense is required only if, 

considering the totality of the evidence, the jury might have a reasonable doubt as 

to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable 

doubt that he is guilty of the lesser offense.” Houston v. Commonwealth, 975 

S.W.2d 925, 929 (Ky. 1998). “The fact that the evidence would support a guilty 

verdict on a lesser uncharged offense does not establish that it is a lesser included 

offense of the charged offense.” Id.

KRS 505.020(2) states in relevant part as follows:

A defendant may be convicted of an offense that is 

included in any offense with which he is formally 

charged. An offense is so included when:

(a) It is established by proof of the same or less than all 

the facts required to establish the commission of the 

offense charged[.]
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In Houston, in considering whether criminal facilitation could be a 

lesser included offense of trafficking in or possession of a controlled substance, the 

Court pointed out that the trafficking or possession offense each “require proof that 

the defendant, himself, knowingly and unlawfully committed the charged offense” 

while “[t]he offense of criminal facilitation requires proof that someone other than 

the defendant committed the object offense and the defendant, knowing that such 

person was committing or intended to commit that offense, provided that person 

with the means or opportunity to do so.” 975 S.W.2d at 930 (emphasis added). 

The Court explained that, consequentially, facilitation could not be a lesser 

included offense because it required “proof of additional and completely different 

facts.” Id.

In Roberts v. Commonwealth, 410 S.W.3d 606, 608-10 (Ky. 2013), 

the Court followed Houston in holding that criminal facilitation was not a lesser 

included offense of manufacturing methamphetamine, because it likewise required 

proof of additional and completely different facts. The Court concluded that 

because criminal facilitation was not a lesser included offense of manufacturing 

methamphetamine, such an instruction was not required. Id. at 610.

Therefore, the trial court did not err in failing to instruct the jury on 

criminal facilitation to commit manufacturing of methamphetamine. 
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Accordingly, we reverse and remand the Knox Circuit Court’s 

judgment insofar as Roark is entitled to receive a new trial on the charges of 

manufacturing methamphetamine and possession of methamphetamine based on 

the unanimous verdict and double-jeopardy issues. As Roark did not challenge his 

conviction for tampering with physical evidence, that conviction remains.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Shannon Dupree

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

(former)

Joseph A. Beckett

Assistant Attorney General

Frankfort, Kentucky